WUNRN
BOTSWANA - WOMEN WIN LANDMARK RIGHT TO INHERIT UNDER
CUSTOMARY LAW
By Lisa Anderson, 4 September 2013
A
In a case heard by the appeals court in the
capital city of Gaborone, the issue was whether daughters can inherit family
property under customary law that long has held only males had the right of
inheritance.
Edith Mmusi, 80 years old, argued that
since she lived in the ancestral family home, and she and her sisters had invested
in improving it, she and her three sisters should inherit it.
Her claim was challenged by a nephew's
assertion that, as the male heir, he should inherit the homestead, although he
had never lived there, because his father had been given the home by a male
relative.
The judges unanimously ruled in favour of
the four sisters, rejecting a long history of customary law that favoured males
in inheritance matters.
"The judgment today by the Court of
Appeal made it clear that women are not second class citizens in
"Some people had feared that the Court
of Appeal would set the fight for women's rights back yet again," said
Patel. "But instead they ruled unanimously in favour of equality and
against gender discrimination. It is a hugely important decision not only for
Justice Isaac Lesetedi, who wrote the
court's decision, took note of the changes in society over the past 30 years in
his opinion. He wrote that the "Constitutional values of equality before
the law, and the increased leveling of the power structures with more and more
women heading households and participating with men as equals in the public
sphere and increasingly in the private sphere, demonstrate that there is no
rational and justifiable basis for sticking to the narrow norms of days gone by
when such norms go against current value systems."
In his concurring opinion, Chief Justice
Ian Kirby also firmly rejected tradition that favoured only male heirs. He
wrote that "any customary law or rule which discriminates in any case
against a woman unfairly solely on the basis of her gender would not be in
accordance with humanity, morality or natural justice. Nor would it be in
accordance with the principles of justice, equity and good conscience."